How to Avoid an IVF Embryo Dispute

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How to Avoid an IVF Embryo Dispute

As more people turn to in vitro fertilization (IVF) to grow their families, the storage of unused frozen embryos for future use is becoming common. 

While couples often sign an agreement outlining how these embryos are to be handled should they separate or divorce, their views on how to use these frozen embryos should be used often change, leaving courts to decide the fate of many embryos.

What disposition options are usually offered by fertility clinics?

Before the IVF process takes place, couples usually sign a contract specifying what will happen to their embryos should the couple separates, divorces, or if one or both of them pass away.

Some common options are

  • destroy the embryos
  • donate the embryos to a third party recipient or for medical research
  • decide that they will jointly have the authority
  • decide that one of them will have the sole authority of the embryos

Most couples make this decision without consulting an attorney at the fertility clinic. 

With the passage of time, situations change, and especially after a separation, a couple often develop different intentions regarding the use of their frozen embryos.

At the time a couple signs the contract, they are often focused primarily on building their family and often do not take the potential of separation or divorce seriously. Thus, it is uncertain how rational though vs emotion and instict govern the deliberaiton when the couple signs the contract.

For example, does the couple ask themselves important questions like:

  • Do I really want to have children with my ex-spouse? 
  • Do I understand that I may be responsible for child support? 
  • Do I understand the child may have a right to inherit? 

Contracts are important aspects of society, and we should be able to rely on them and know that they will be enforced fairly and as outlined in the contract. Still, does a person really want to be forced to have a child or be responsible for that child long after they separated?

What do courts say about embryo disposition following a separation or Divorce?

Courts have consistently declared that embryos are not persons and that they are not life. 

However, courts have also recognized that embryos cannot be allocated like jewelry, electronics, cars, or a house. Still, when it comes to the disposition of embryos, laws vary from state to state with courts generally favoring the right not to procreate.

Overall, courts have been applying one of three approaches: 

  • they enforce the contract between the parties
  • they use a “balance test” to “balance” the right not to procreate versus the right to procreate. 
    • Generally, the courts favor the right not to procreate as long as the other party has a reasonable chance of achieving parenthood via other means.
  • apply the “contemporaneous mutual consent” approach. This requires a mutual consent by both parties for the disposition of the embryos and results in the embryos remaining frozen until an agreement is reached between the parties.

What Should Couples Do to Prevent Embryo Arguments after a Separation?

Before creating and freezing embryos, it’s important to know the views of your spouse or other party regarding the disposition of frozen embryos in the future. 

Read the contract carefully and ask important questions like: 

  • do you really want to give your spouse the sole authority regarding how the embryos should be handled? 
  • Do you really want biological children with your ex? 

Just as you would seek the advice of an attorney with a prenuptial agreement or other important contracts, its important seek the advice of a reproductive law attorney to understand all of the legal implications of what you are signing.


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